AMENDING THE CONSTITUTION OF GHANA: IS THE IMPERIAL PRESIDENT
TRESPASSING?
STEPHEN KWAKU ASARE*
*College of Business, University of Florida
H. KWASI PREMPEH†
†School of Law, Seton Hall University
African Journal of International and Comparative Law , forthcoming
I. INTRODUCTION
In January 2010, Ghana‘s President John Atta Mills appointed a commission to review
and propose amendments to the country‘s current constitution, in force since 1993.1 The
―constitutional instrument‖ establishing the commission tasked the nine-member body2 to
―ascertain from the people of Ghana, their views on the operation of the constitution, and in
particular its strength and weaknesses, articulate the concerns of the people on amendments that
might be required for a comprehensive review and make recommendations to government for
consideration.‖3 A Ministry of Justice document setting forth the administration‘s agenda for
constitutional reform identifies about forty specific provisions4 and omissions in the constitution
as likely candidates for review and amendment, and the commission is directed to consider these
pre-identified issues in its review.5 By its terms of reference, the commission‘s final work
product must include ―a draft Bill for possible amendments to the constitution.‖6
With the exception of one or two local commentators who have publicly questioned the
need, at this time, to review Ghana‘s constitution, and others who have objected to the
1
Constitutional Instrument 2010 (C.I. 64).
2
The commission is chaired by an emeritus professor of public law. Its membership includes two chiefs, four
lawyers (including a prominent member of the leading opposition party, the head of an influential NGO, and a
consultant to the parliamentary legal drafting office); a senior lecturer of political science, and an educationist. The
Executive Secretary to the commission, who will head the commission‘s secretariat, is a legal academic on the
faculty of law of Ghana‘s premier university. He, too, is an appointee of the president.
3
Supra note 1.
4
See Appendix 1.
5
The Ministry of Justice, Ghana, Consultative Review of 16 Years of the Operation of the 1992 Constitution of
Ghana: Project Proposal (October 2009). The total cost of the constitutional review is estimated at US$
2,716,685.00, with the Government of Ghana contributing 20% of the budget and the remainder projected to come
from unspecified donors. We do not explore the role that such donor funding has on driving reform agenda in
Ghana.
6
Ibid.
1
commission on cost grounds,7 the appointment of the commission by the President has been
generally welcomed by Ghanaian civil society and even touted by the President‘s supporters as
exemplifying his administration‘s commitment to strengthening the constitutional foundations of
Ghana‘s nascent democracy.8 Notably, no objection or voices of dissent have been heard from
any political party or politician. To the contrary, Ghana‘s political parties have joined with civil
society in pledging their cooperation to the commission as it carries out its presidentiallyassigned mandate.9
Missing from the reaction to the appointment of the commission is a discussion or
questioning of the constitutional propriety of the President unilaterally and exclusively initiating
a process and setting an agenda for a comprehensive review of the country‘s constitution,
including a timetable, leading up to likely changes to what is ―the fundamental and supreme law
of the land.‖10 Perhaps, because there appears to be widespread agreement as to the ends, or the
desirability of revising certain parts of the constitution, little attention has been paid to the
7
See e.g., Constitutional Review Takes Off - But Kumado Says It's A Misplaced Priority, Daily Graphic (11
January 2010), also available at http://www.graphicghana.com/news/page.php?news=5981 (last accessed on 10
May 2010).
8
See e.g., CDD-Ghana Welcomes Constitutional Review Commission, Ghana News Agency (15 January 2010) also
available at http://elections.peacefmonline.com/politics/201001/36547.php (last accessed on 10 May 2010).
9
See e.g., Minority Leader urges Ghanaians to Support Constitutional Review Process, Ghana News Agency (13
February 2010), also available at http://ghanaweb-news.com/LatestGhanaNewsofSaturday13February2010.aspx
(last accessed on 10 May 2010).
10
Ghana‘s Parliament amended the constitution in 1996 to allow dual citizenship; to change the position of the Vice
President as the automatic Chair of the Armed Forces, Police and Prisons Councils; to review entitlements of
Members of Parliament to gratuity and to allow more time between the death of a Member of Parliament and the
holding of a by-election; to increase the membership of the National Media Commission (NMC); and to proscribe
founding members and office holders of political parties to be members of the NMC. However, this is the very first
time that the current constitution is being subjected to a wholesale, rather than clause-specific, review and revision.
Ghana‘s only and previous experience with a wholesale review of a constitution occurred in 1960, when the
Independence constitution was replaced by a republican constitution. See infra at 9-10.
2
means, or the propriety of the process initiated by the President, including its constitutional
soundness. It is the common fallacy of ―the end justifies the means,‖ which, as usual, overlooks
the risk that the means might corrupt the ends.
The constitutional instrument establishing Ghana‘s constitution review commission cites
article 278(1)(a) of the constitution as the source of the president‘s authority for setting up such
a commission.11 That provision, part of the chapter of the constitution relating to Commissions of
Inquiry, authorizes the President, if he is ―satisfied that a commission of inquiry should be
appointed‖ to appoint such a commission to inquire into ―any matter of public interest.‖12 From
the standpoint of the presidency, then, the President‘s assertion of plenary authority in this matter
is deemed uncontroversial in light of article 278(1)(a). Indeed, considering that no objection or
challenge has been raised to the president‘s action by any political party or a coordinate branch
of government (specifically, Parliament), it is fair to surmise that the president‘s broad
conception of the scope and content of the prerogatives of his office is not seriously contested
politically or legally.
This should come as no surprise. Like the rest of Africa, Ghana has had an unbroken
political tradition of ―imperial presidency.‖13 Beginning with the first post-independence
government under Kwame Nkrumah, the politics of the country has been characterized by
executive supremacy. This phenomenon, which reached its height during Nkrumah‘s rule in the
11
Supra note 1.
12
Constitution of the Republic of Ghana (4th Republican Constitution) (1993), Article 278(1)(a), copy available at
http://www.ghanaweb.com/GhanaHomePage/republic/constitution.php (last accessed on 10 May 2010).
13
See H. Kwasi Prempeh, ‗Presidential Power in Comparative Perspective: The Puzzling Persistence of Imperial
Presidency in Post-Authoritarian Africa‘, 35 Hastings Const. L.Q. 761 (Summer 2008): 784-95.
3
First Republic (1960-1966) and the military government of Jerry John Rawlings (1982-1993),
has survived successive constitutional and regime changes. Despite the exceptional strides
Ghana has made in its current transition to democracy, there is inescapable evidence that the
tradition of an imperial president endures in Ghana, as elsewhere in Africa.14 Notably, every
single piece of proposed legislation introduced in, or enacted into law by, the Parliament of the
Fourth Republic (i.e., since 1993) has been introduced by and on behalf of His Excellency the
President. Parliament has completely yielded to presidential initiative not only in matters of
legislation but in virtually every area of public policy.15 Ghana‘s Parliament and the political
establishment generally must thus believe that, as has happened with ordinary legislation,16 the
initiative, agenda and process of constitutional reform must be set by, and managed at the
direction of, the President.
We disagree. We believe that a reliance on article 278(1)(a), as authority for presidential
initiative and unilateralism in setting the agenda for a review and possible amendment of the
constitution of Ghana, is misplaced. We argue in this article that a comprehensive review of the
constitution, such as is contemplated in this case, is an act sui generis, not just ―any‖ matter of
public interest that is to be governed by the generic provisions relating to ad hoc commissions of
inquiry. In our view, the appropriate constitutional text that must inform and govern the process
14
See H. Kwasi Prempeh, ‗Presidents Untamed‘, in Larry Diamond & Marc Plattner (eds.), Democratization in
Africa: Progress and Retreat,‘ John Hopkins University Press (2010) .
15
Occasionally a Member of Parliament will complain about the broad sweep of the President‘s powers, as
happened when President Atta Mills appointed Majority leaders of Parliament in 2010. See e.g., Minority leader:
Mills is putting parliament under his armpit, Ghana News Agency (27th January, 2010) also available at
http://news.myjoyonline.com/politics/201001/41124.asp (last accessed on 10th May, 2010). See also, Daily
Graphic, The president is too powerful—Ala Adjetey, Aug. 31, 2007, available at
http://www.myjoyonline.com/politics/200708/8186.asp
16
See infra at 28-30.
4
of constitutional review in Ghana is not the generic provision relating to any commission of
inquiry but the specific provisions of the constitution that set forth the structure and mechanics of
constitutional amendment, namely articles 289, 290, 291 and 292, which together constitute
chapter 25 of the constitution.17 While none of these provisions answers precisely the very
narrow question of which constitutional organ, the President or Parliament, must initiate or set
the agenda for constitutional review, we argue that, careful attention to the text, structure and
implications of the scheme for constitutional amendment set forth in chapter 25 coupled with the
unique character of a revision of the fundamental and supreme law of the land, compels the
conclusion that Parliament, not the President, is the constitutionally legitimate body to initiate
and lead the exercise.18 Because of the historic nature of this constitutional review—it being the
first time since 1960 that a currently ―subsisting‖ Ghanaian constitution is to undergo a
17
Fourth Republican Constitution, Chapter 25.
18
In the world of constitutions, proposals to amend a constitution can be triggered in a variety of ways: by initiative,
legislative resolution, constitutional convention, or a review commission. An initiative requires citizens to gather a
set number of signatures or petitions calling for an amendment to be placed on a ballot. It is typically invoked by
filing with a designated official (e.g., Electoral Commissioner) a copy of the proposed revision or amendment,
signed by the required number of citizens. Legislative resolutions emanate from the legislature. A constitutional
convention is convened to consider a revision of the entire constitution. For instance, in March 1960, the
Government of Ghana constituted parliament into a constitutional convention to consider its proposals for a
Republican Constitution (see E. Schwelb, ‗The Republican Constitution of Ghana‘, The American Journal of
Comparative Law (Autumn 1960): 634-656. A review commission is typically a constitutional created agency that
convenes at set intervals to review the constitution and make proposals for amendments. The framers of a
constitution may choose any combination of these methods. For instance, the constitution of the State of Florida
allows any of these methods to trigger the amendment process (Article XI Florida Constitution). Article 289 (1) of
Ghana‘s constitution specifies that ―Subject to the provisions of this Constitution, Parliament may, by an Act of
Parliament, amend any provision of this Constitution.‖ Thus, while this provision is explicit that only Parliament
may amend the provision, it leaves room to debate how the bill for amendment gets to Parliament. Presumably, as
implied by the setting up of the review commission, the provision does not foreclose the option of using a review
commission. But if so, can a bill of amendment arise out of an initiative? And how many signatories are required?
Similar questions arise in the setting up of a commission — who appoints members of the review commission? what
is the scope of their work? etc. These questions do not become insignificant merely because the President issues a
constitutional instrument. We believe amending the constitution is a matter that is too important to allow the rules to
be made on an ad hoc basis.
5
comprehensive or wholesale review unprovoked by any specific event—we believe that an
assertion of presidential primacy and control over the process and agenda for constitutional
review, and parliamentary acquiescence in this move, sets a bad constitutional precedent, one
that further entrenches the imperial presidency and extends its tentacles to new and dangerous
frontiers.
The rest of the article proceeds as follows. In section II, we examine, briefly, the history
of constitution-making and constitutional change in Ghana since the end of the colonial period.
We follow in section III with a discussion of the plan of constitutional amendment mapped out in
the current constitution and conclude from that survey that Parliament, not the President, is the
constitutionally appropriate body to initiate and set the agenda for constitutional change in
Ghana. We support this conclusion not only through a textual and structural analysis of the
constitution, but also by articulating a set of policy reasons why Parliament is where the power to
review and revise Ghana‘s constitution must be located. In section IV we proceed to answer the
question why, in light of the arguments advanced in section III, the President has encountered
virtually no opposition to his decision to assume primacy and control over the process and
agenda for constitution reform. We offer some concluding thoughts in section V.
We must note at the outset that the position we defend in this article does not imply our
opposition to the desirability of amending or repealing certain provisions of the Ghana
constitution. To the contrary, we believe that certain features and provisions of Ghana‘s current
constitution indeed warrant careful re-examination and revision in order to advance the ongoing
6
project of democratic constitutionalism in Ghana‘s Fourth Republic.19 Our concern here is
mainly with process, namely the means by which any such constitutional revision must be
pursued and, specifically, which organ of government must determine the timing and set the
agenda for constitutional reform. We believe that the constitutionally appropriate organ in this
regard is the Parliament of Ghana, not the President.
II. A SHORT HISTORY OF MAKING CONSTITUTIONAL CHANGE IN GHANA
On March 6, 1957, Ghana attained sovereign statehood and commenced its life as a new
nation under the Independence Constitution.20 Since then the country has adopted a succession of
four constitutions, which Ghanaians commonly refer to as the First,21 Second,22 Third23 and
Fourth24 Republican Constitutions.25 Ghana‘s five constitutions can be distinguished primarily
by the nature of the executive power and, for the purpose of this article, by the locus of the
amending power. The Independence Constitution, under which Ghana retained the Westminster
19
Examples include the absence of ceilings on the number of Supreme Court justices, Ministers, and Members of
Parliament, which allows the President to expand the size of the Court and his ministerial team at will. Even more
curious is the size of the legislature, which can be expanded (or for that matter shrunk) by the Electoral Commission
ad infinitum.
20
The Ghana (Constitution) Order in Council, 1957. See also S. O. Gyandoh, Jr. and J. Griffiths, A Sourcebook of
the Constitutional Law of Ghana, Volume 1 Faculty of Law, University of Ghana (1972): pp. 128-141 for a reprint
of the Independence Constitution.
21
The Constitution of the Republic of Ghana (1960). See Ibid. at 162-170 for a reprint.
22
The Constitution of the Republic of Ghana (1969). See Ibid. at 1-56 for a reprint.
23
The Constitution of the Republic of Ghana (1972).
24
Supra at note 11.
25
The First Republican Constitution became effective on July 1, 1960 and was abrogated by a military junta on
February 24, 1966. The Second Republican Constitution became effective on August 22, 1969 and was abrogated by
a military junta on January 13th 1972. The Third Republican Constitution became effective on September 24, 1979
and was abrogated on December 31, 1981. The Fourth Republican Constitution became effective on January 6 th,
1993 and remains the fundamental law in Ghana today.
7
constitutional tradition, installed during the late colonial period, vested executive power in the
Queen of England, represented in Ghana by a Governor General.26 The power of the Queen was
however merely ceremonial. The general direction and administration of the country was under
the control of a cabinet of ministers drawn from the majority party in Parliament and led by the
Prime Minister as head of government.27
The amending power under the Independence Constitution was vested in Parliament. All
amendments to the constitution required a two-thirds majority of Members of Parliament.28 A
second layer of super-majority (two-thirds) approval by Regional Assemblies was required for
amendments relating to such matters as chieftaincy and the Regional Assemblies. 29
The Regional Assemblies required to be established by the Independence Constitution
were duly established by an Act of Parliament in September 1958.30 However, because the
regional assemblies law transferred no meaningful authority to the assemblies, the opposition
party, which had accepted some devolution of power to regional assemblies as a compromise for
its pre-independence demand for a federal constitution, boycotted the ensuing regional assembly
elections.31 As a result, the Regional Assemblies were all controlled by members elected on the
26
Constitution (1957), Article 6.
27
Ibid., Article 7.
28
A few articles were entrenched and put beyond the reach of amendment. For instance, under Articles 31 (2) ―No
law shall make persons of any racial community liable to disabilities to which persons of other such communities
are not made liable,‖ and Article 31 (3) ―Subject to such restrictions as may be imposed for the purposes of
preserving public order, morality or health, no law shall deprive any person his freedom of conscience or the right to
freely profess, practise or propagate any religion.‖
29
Ibid., Article 32.
30
Regional Assemblies Act, 1958 (No. 25)
31
F. A. R. Bennion. The Constitutional Law of Ghana, Butterworths, London (1962): 65.
8
ticket of the ruling party led by Prime Minister Nkrumah.32 Using its majorities in these
assemblies, together with its control of Parliament, the government managed to repeal in
December 1958 the constitutional limitations on amendment of the constitution.33 Henceforth, it
would require only a simple majority of Parliament to amend the Constitution. In March 1959
the first such law was passed providing for the dissolution of all the Regional Assemblies.34
It is also important to note that, by this time, the Nkrumah government had managed,
through the use of a Preventive Detention Act (PDA) enacted in 1958,35 to send leading or
suspected members of the opposition to jail or exile. Detention under the PDA constituted
grounds for disqualification from or forfeiture of membership in Parliament. Aggressive use of
the law against rival party politicians therefore resulted, over a short period of time, in
Ghana‘s first Parliament becoming a de facto one-party legislature.36
In January 1960, the government published a bill setting forth its plan to hold a
plebiscite in which the people of Ghana would be asked to state whether they approved proposals
to be submitted by the Government for a new, republican constitution. As the Independence
Constitution had not anticipated or provided for Ghana‘s conversion to a ―republican‖ form of
32
Ibid.
33
Ibid. at 69
34
See Schwelb, supra note 15 at 636-640.
35
Under the Preventive Detention Act, the Government (i.e., the Prime Minister) could order the arrest and
detention without trial of any citizen for periods of up to five years at a time.
36
Other amendments to the Independence Constitution included the dissolution of the Judicial Service Commission,
the creation of Brong Ahafo region from the northern part of Ashanti region and a small area taken from Northern
region, and a repeal of several parts of the House of Chief Act. See Bennion infra at 70-72.
9
government, whereby the British monarch would cease to be titular head of state, 37 the
government‘s plan triggered questions about what broad principles a republican constitution
should embrace, how the new Republican President was to be elected, and most important, at
least for current purposes, who to draft and enact the new constitution.38
The opposition party, already under assault from the persistent harassment, arrest
and detention of its leaders under the PDA, was naturally suspicious of the government‘s plan to
move the country to a ―republican‖ constitution. The opposition also took the view that, if a new
constitution needed to be written, it ought to be done by a constituent assembly comprising a
mixture of elected and appointed members, representative of all interests in the country.39 Under
the opposition party‘s proposal, the constituent assembly would have included, in addition to
Members of Parliament, elected and appointed representatives of chiefs, the universities, the
churches, the muslim council, the professional associations, the chambers of commerce, the
farmers union, the trades union congress, the ex-servicemen organizations, the national women‘s
federation, and the political parties. The Government, on the other hand, held the view that
because the incumbent ―members [of the National Assembly] were chosen by the people at the
last general election to represent them in making laws for Ghana,‖ it was only ―right that
Members of Parliament and not other persons who have not been so chosen should constitute the
Constituent Assembly.‖This debate was resolved, predictably, in favor of the Government
37
The Minister of Local Government made the following statement in the National Assembly. ―The present
Members of Parliament were however not elected by the people for the purpose of enacting a republican constitution
and the question of a republic was not an issue at the last general election. … Nevertheless, it cannot be said that this
House, as at present constituted, has a mandate from the people to adopt or make on their behalf, any particular form
of republican constitution.‖ See Ibid. at 80.
38
Ibid.
39
Ibid. at 81.
10
position by the passage of the Constituent Assembly and Plebiscite Act by the National
Assembly in February 1960.40 The Act provided that the National Assembly41 ―is hereby
authorized to resolve itself from time to time into a Constituent Assembly with full power to
enact such proposals for or in connection with the establishment of a new Constitution as it
thinks fit, including provisions whereby Ghana is established as a Republic.‖42
In March 1960, the government published a White Paper explaining its proposals for a
Republican Constitution. The White Paper also contained a draft of the Constitution. Later that
same month, the National Assembly sitting as a Constituent Assembly approved the draft
Constitution.43 The ensuing plebiscite,44 held in April, resulted in a ―yes‖ vote in favor of the
draft Constitution45 and in the choice of Nkrumah as President.46
40
Ibid. at 82
41
Technically, Parliament under the Independence Constitution comprised the Queen and a national assembly of
not less than 104 members elected by adult suffrage. Legislative power was vested in Parliament. However when
Parliament acted without the Queen, as was the actual practice, it was simply called the National Assembly.
42
Constituent Assembly and Plebiscite Act, 1960 (No. 1), s. 2(1).
43
Bennion at 85.
44
The plebiscite asked voters two questions: (1) Do you accept the draft republican Constitution for Ghana as set out
in the White Paper issued by the Government on 7th March, 1960? (2) Do you accept Kwame Nkrumah or Joseph
Boakye Danquah as the first President under the new Constitution? Ibid. at 89.
45
The Constitution as eventually enacted by the Constituent Assembly departed, in certain important respects, from
the text of the draft constitution as presented to the plebiscite. For a discussion of the differences between the text
of the final Constitution and the approved draft, see L. Rubin & P. Murray, The Constitution and Government of
Ghana (2d ed., 1964): 17-27.
46
Worldwide reaction to the adoption of the constitution was decidedly mixed. In UK, the Daily Mirror, wrote ―The
new Constitution puts paid to any idea that Ghana is heading for dictatorship.‖ In USA, the Washington Post,
remarked ―What makes the move of special significance is that Ghana, as the first West African country to attain
full independence from colonial status in 1957, is in many respects the bellwether for the continent during an
exciting period.‖ In South Africa, the Natal Witness referred to the Constitution as ―Black Bonapartism‖ and in
France, L’Information described the draft constitution as ―at the same time authoritarian and expansionsist.‖ See
Ibid. at 86-88.
11
The First Republican Constitution was effectively a constitutional coup d‘état effected
by Nkrumah and the ruling party, using a series of constitutional amendments, constitutional
revision, and ultimately a wholesale constitutional rewrite.47 The new constitution vested
extraordinary power in the President. 48 In exercising his functions as President, the President
was empowered to act in his own discretion and was not obliged to follow advice tendered by
any other person.49 Notably, the 1960 Constitution made no provision for a deputy or vice
president. There were other notable provisions. ―Kwame Nkrumah is hereby appointed first
President of Ghana, having been chosen as such before the enactment of the Constitution in a
plebiscite conducted in accordance with the principle set out in Article 1 of the Constitution.‖50
Further, ―the President may at any time by proclamation dissolve the National Assembly.‖51 As
one commentator noted at the time, the presidential regime installed in Ghana‘s First Republic
was extraordinary; ―unlike the American President, the President of Ghana can dissolve the
National Assembly, unlike the Prime Minister of Britain, he could not be unseated by the
legislature.‖52
47
Ghana, thus, became the first member of the Commonwealth to adopt a Republican Constitution without having
had the means to do so expressly indicated in its founding constitution. Although both Pakistan and India had
become republics earlier, their Independence Act had provided constituent assemblies. See Ibid. at 74.
48
First Republican Constitution, Article 8.
49
Ibid., Article 8 (4)
50
Ibid., Article 10
51
Ibid., Article 23.
52
Schwelb, supra note 15 at 644.
12
The amending power under the First Republican Constitution was divided between the
Parliament and the People.53 The power to amend or repeal certain entrenched provisions in the
Constitution was reserved to ―the People,‖ with the residual amending or legislative power going
to Parliament.54 The term ―Parliament‖ in Ghana‘s First Republican Constitution was used as a
term of art, to mean the National Assembly (legislature) and the President acting jointly. 55 While
the legislative power was vested in Parliament, the Constitution also gave the first President
(Nkrumah) power to unilaterally make provisions having the force of law.56 In addition, article
55 of the Constitution empowered the first President to give directions by ―legislative
instrument‖ which may alter or repeal any existing law other than the Constitution.57
In 1964, the amending power was exercised to introduce a one-party state and to grant to
the President the power to remove judges of the Superior Courts at any time and for reasons
which to him appear sufficient.58 Thus by 1964, Ghana‘s first President had exploited the
amending powers to complete the subordination of all branches of government and institutions of
state to the control and discretion of the President. Having installed a constitutional dictatorship
and thus foreclosed all lawful avenue for a change of government, Nkrumah‘s government made
53
Firstt Republican Constitution, Article 20.
54
Ibid.
55
Ibid.
56
Under Article 8(4), the President was also the Commander-in-Chief of the Armed Forces and the ―Fount of
Honour.‖
57
The First Republican Constitution was extravagant in other respects. For instance, Article 2 provided that, ―In the
confident expectation of an early surrender of sovereignty to a union of African States and territories, the people
now confer on Parliament the power to provide for the surrender of the whole or any part of the sovereignty of
Ghana.‖
58
S. O. Gyandoh, ‗Interaction of the Judicial and Legislative Processes in Ghana Since Independence‘, 56 Temp.
L.Q 351 (1983) at 360.
13
itself and the country vulnerable to regime change by extra-constitutional methods. The military
was to supply that method on February 24, 1966. With Parliament, the presidency, and the
constitution abolished, Ghana‘s first military regime ruled by means of decrees which were
issued in the name of a council comprising senior military and police officers and a few selected
civilian politicians. The council exercised supreme legislative and executive authority.
In September 1966, the ruling council, signaling its intention and commitment to return
the country to civilian rule under a democratic constitution, established an eighteen-(later
seventeen)-member constitutional commission,59 assisted by a three-person secretariat, to draft
proposals for a new constitution.60 In December 1968, the draft Constitution that had emerged
from the commission‘s work was entrusted to a larger and more representative Constituent
Assembly for debate and ratification.61 The assembly ratified the final constitution in August
1969, paving the way for new multi-party elections and the installation of a new democraticallyelected government later that same year.62
The Second Republican (1969) Constitution reverted Ghana to a Westminster-style
government, with a Prime Minister as head of government and a non-executive President as head
of state. 63 The amending power in the 1969 constitution was located in Parliament. While
amendments generally required the approval of two-thirds of all Members of Parliament, certain
59
Constitutional Commission Decree, 1966 (N.L.C.D. 102). See also Constitutional Commission (Amendment)
Decree, 1967 (N.L.C.D. 158) and Constitutional Commission (Amendment) Decree, 1967 (N.L.C.D. 149).
60
For an account of the constitutional commission, see Robin Luckam, ‗The Constitutional Commission 1966-69‘,
in Dennis Austin & Robin Luckam, (eds.) Politicians in Ghana 1966-1972 (1975), pp..
61
Ibid.
62
Ibid.
63
Second Republican Constitution, Article 48.
14
specified provisions of the constitution, notably the bill of rights and provisions relating to the
right to vote, could not be amended ―in any way that may detract or derogate from any such
provision or the principles embodied in any such provision.‖64 Furthermore, to prevent
incumbent self-entrenchment, a vote to amend a wide range of provisions which passed one
parliament could not take effect unless the successor parliament also voted to approve those
changes by the requisite two-thirds majority. 65
The life of Ghana‘s second republic was cut short when the elected government was
overthrown in its first term by officers of the armed forces in January 1972. Following the
pattern of the first military junta, the new military council ruled by decree for the next six years,
going through a number of personnel and internal organizational changes during this period.
Civilian constitutional rule was again restored in the last quarter of 1979, this time on the basis of
a constitution that departed from the Westminster model and embraced key features of the
American Presidential system.
The Third Republican Constitution bifurcated the provisions of the constitution, for
purposes of amendment, into entrenched and non-entrenched provisions. Amendments to the
entrenched provisions required, among other hurdles, the approval of voters in a referendum.
Amendments to non-entrenched clauses required passage by a two-thirds majority of Parliament,
but also had to secure the prior supermajority approval of both a council of state and local
government councils.66
64
Ibid., Article 169(4).
65
Ibid., Article 169.
66
Third Republican Constitution, Article 210.
15
Like the Second Republic, Ghana‘s Third Republic was aborted by the military in the
coup of December 31, 1981.67 The new coup-installed government, under the chairmanship of
Jerry John Rawlings, remained in power for the next decade, until mounting pressure from both
domestic and external factors, compelled it to return the country to constitutional rule in 1993,
paving the way for Ghana‘s current Fourth Republican Constitution.
The picture that emerges from a review of the history of constitution-making and
constitutional change in Ghana, aside from the high mortality rate of Ghanaian constitutions
resulting from frequent coups d’état, is that Ghana‘s successive constitution-makers have moved
toward progressively more ―rigid‖ constitutions since the collapse of the First Republic, making
wholesale constitutional change increasingly difficult to accomplish. This is clearly a reaction to
the experience under the Independence and First Republican Constitutions, and reflects a
determination on the part of the framers of Ghana‘s constitutions to prevent future incumbents
from manipulating the process of constitutional change to entrench themselves in office or
whittle down the protections and safeguards built into the constitution to forestall the emergence
of a constitutional dictatorship. The same learning, we posit, informs the amendment provisions
of the current constitution.
III. REVIEWING AND AMENDING THE GHANA CONSTITUTION: WHO MUST
SET THE AGENDA?
The provisions governing amendments to Ghana‘s current Constitution are contained in
Chapter 25 of the Constitution, titled ―Amendment of the Constitution.‖ According to article
289(1), which opens the chapter, ―Subject to the provisions of the Constitution, Parliament may,
67
Ironically, flight Lieutenant Jerry Rawlings who presided over the return to the civilian Third Republic was the
same man who led the junta that aborted the Republic.
16
by an Act of Parliament, amend any provision of this Constitution.‖ The rest of chapter 25
classifies the provisions of the Constitution into two, namely ―entrenched provisions‖ and ―nonentrenched provisions,‖ and, then, delineates the mechanics for the amendment of each class of
provisions. The primary difference in the process of amendment between the two classes of
constitutional provisions is that, while an amendment of an entrenched provision must secure the
approval of a super-majority (75%) of voters in a national referendum (with a minimum voter
participation rate of forty percent of registered voters), amending a non-entrenched provision
requires the approval of only a super-majority of legislators. In each case, before an approved
amendment comes into effect it must have received the assent of the President. Importantly,
however, the constitution makes the President‘s assent mandatory, and thus merely a ministerial
act, once a proposed amendment has secured the requisite popular or legislative approval.68
The scheme for amendment outlined in chapter 25, read in light of the constitution as a
whole, offers strong support for the proposition that it is Parliament, not the President, that is
supposed to set the agenda and initiate the process of constitutional revision. First, article
289(1) expressly designates Parliament, and Parliament alone, as the body that ―may, by an Act
of Parliament, amend any provision of this Constitution.‖ Unlike the 1960 Constitution of
Ghana, which defined the term ―Parliament‖ to include both the President and the legislature
(then called the ―National Assembly‖) acting jointly,69 under the current Constitution
68
Fourth Republican Constitution, Article 290 (3).
69
First Republican Constitution, Article 20 (1) stipulates ―there shall be a Parliament consisting of the President and
the National Assembly.‖
17
―Parliament‖ refers to the legislature alone.70 Admittedly, an Act of Parliament, which, under
article 289(1), is the prescribed form a constitutional amendment must take, is technically the
product of the Parliament and the President acting together. However, as we have already
stated, when it comes to amending a provision of the 1992 Constitution, the constitutionally
prescribed division of labor assigns to the President only the ministerial or pro-forma ―back-end‖
role of assenting to a pre-approved amendment.
Second, it is important to emphasize that the extent of the Ghanaian President‘s
constitutional authority is limited to powers expressly granted him by the Constitution (including
those incidental powers necessary for the accomplishment of the express powers)71 plus those
powers properly delegated to him under constitutionally-valid statutes. The Fourth Republican
Constitution of Ghana does not create a President of unlimited power. Nor does the President
inherently possess the constitution‘s ―residual power,‖ or the remainder of the power that is not
expressly or impliedly allocated under the Constitution. All such residual power is, of necessity,
reposed in Parliament, to be exercised by it, as and when needed, through the passage of
appropriate legislation. The President is constitutionally the sole repository of the ―executive
authority‖ of the State, but that power is the power to enforce enacted laws, not to make or
change them. With regard specifically to who gets to initiate new law, the Constitution is
always quite clear when the intention is to have the President, and only the President, originate
70
Fourth Republican Constitution, Article 93 (1) ―There shall be a Parliament of Ghana which shall consist of not
less than one hundred and forty elected members, and (2) Subject to the provisions of this Constitution, the
legislative power of Ghana shall be vested in Parliament and shall be exercised in accordance with this
Constitution.‖
71
Article 297(c) of the Constitution provides, ―In this Constitution and in any other law where a power is given to a
person or authority to do or enforce the doing of an act or a thing, all such powers shall be deemed to be also given
as are necessary to enable that person or authority to do or enforce the doing of the act or thing.‖
18
particular kinds of legislation. This is the case, for example, with bills relating to public finance.
Thus, for instance, in article 174 (1), the constitution states that ―no taxation shall be imposed
otherwise than by or under the authority of an Act of Parliament.‖ To forestall disputation as to
when and by whom a bill of taxation is to be originated, Article 179 (1) specifically empowers
and commands the President to ―cause to be prepared and laid before Parliament at least one
month before the end of the financial year, estimates of the revenues and expenditure.‖72
Similarly, in Article 108, the constitution clearly bars Parliament from proceeding on bills that
impose charges on the consolidated or other public funds, ―unless the bill is introduced by, or on
behalf of the President.‖ The express delineation in the constitution of those specific instances
where legislative initiative belongs to the President implies, following the maxim ―expressio
unius est exclusio alterius,‖ that in all other cases the origination of legislative action must
remain with the legislative body itself. Thus, when Article 289 (1) expressly designates
Parliament as the body that ―may amend any provision of the constitution,‖ and does not
designate the President as the one who must introduce a bill of amendment, it must be
understood that the origination power in matters of constitutional amendment remains with
Parliament. Not only that, but also no extra-parliamentary body is empowered to do any
preparatory work for Parliament, unless Parliament itself has validly authorized such a body.
Other elements of the mechanics of constitutional amendment outlined in chapter 25
support our conclusion. Notably, as to both entrenched and non-entrenched provisions, Article
72
As another example, Article 82(1) is of the form ―Parliament may, by a resolution supported by the votes of not
less than two-thirds of all the Members of Parliament, pass a vote of censure on a Minister of State.‖ It will be
straining logic to intolerable limits to argue somehow that because there is no explicit reference to who can originate
such a bill of censure, it follows that the President must set the agenda for bills of censure.
19
290 requires the Speaker of Parliament to refer a bill for amendment of a provision of the
Constitution to the Council of State for its advice before further action on it may be taken by the
Parliament. What is significant about this requirement, that Parliament obtains the advice of the
Council of State on a bill to amend the Constitution, is that it is the only time in the entire
Constitution when the Council of State is specifically required to render advice to Parliament,
rather than the President, on a pending legislation. Throughout the rest of the Constitution (that
is, when the matter does not pertain to an amendment of the Constitution) the role of the Council
of State is to advice the President on a broad range of matters and actions constitutionally
assigned to the President. 73 The fact that, in the specific instance of a proposed amendment to
the Constitution, the Council of State is brought into the process (and early) to offer its advice to
Parliament must mean something, and we would argue that it means two things: first, that
legislation to amend a provision of the Constitution is constitutionally different from ordinary
legislation; hence, the vastly different legislative processes; and, second, that Parliament is the
primary actor and agenda-setter when it comes to proposals to revise the constitution.
It is not enough to argue, in rebuttal, that, under the current arrangement announced by
the President, Parliament still has an opportunity and the responsibility ultimately to consider and
approve the draft Bill that would result from the work of the constitution review commission.
The crucial issue here is who determines if and when there would be a constitutional review as
well as the agenda for such review. It matters little that Parliament will inevitably get its say
before any proposed amendment can pass or that a parliamentary super-majority is required to
73
Indeed Article 89(1) states that the role of the Council of State is ―to counsel the President in the performance of
his functions.‖
20
approve a proposed amendment. As experience has shown, Presidents in the Fourth Republic
have had little difficulty getting Parliament to ratify whatever presidential initiatives are placed
before it. Ultimately, it is who determines if and when the constitution must be reviewed and
who sets the agenda and timetable that matters.
In addition to drawing support from structural inferences based in the text of the
Constitution, the case for regarding Parliament, not the President, as the primary actor and
initiator in the area of constitutional review also rests on strong policy considerations.
First, Parliament is unique among the institutions of the Constitution in being the only
body whose membership straddles the diverse political and regional demography of the nation.
The President, though elected by a national electorate, is elected on the ticket of a single party
and is generally identified with that party and perceived as promoting the policy preferences and
legislative agenda of his party. In contrast, the Parliament of Ghana‘s Fourth Republic draws its
membership from diverse and rival shades and aggregations of political opinion and interests, as
represented by the political parties. In addition to its politically or ideologically representative
character, Parliament also represents, like no other body does, the full range of the nation‘s
regional and ethno-cultural diversity. This superior representativeness of the legislature, in both
the political/ideological and the demographic senses, makes it the body best suited to set the
agenda for the revision or amendment of the document that defines the basic ―rules of the game‖
for the organization, exercise and control of power within the state.
We recall that during the 1960‘s debate over how the proposed transition from the
Independence Constitution to a Republican Constitution would be effected, the Nkrumah
government insisted on constituting the then existing Parliament or National Assembly into a
21
Constituent Assembly which would then draft the new constitution. The Nkrumah government‘s
argument against the opposition party‘s preferred alternative of an expanded but extraparliamentary constitution-drafting body comprising a mix of elected and nonelected members
was that such a body lacked the democratic legitimacy and mandate of an elected legislature.
That argument indeed had merit, even though the opposition‘s alternative, too, more than met the
test of social legitimacy and representativeness.
The main problem with the government
argument in 1960‘s Ghana, however, was that, by that time, the government had already used the
PDA to neutralize and diminish considerably the size of the opposition in the National
Assembly, making that body representative only in theory, but not in fact. This is not the case
with the Fourth Republican Parliament (that is, since 1997).
Second, the multi-party character and composition of Ghana‘s Parliament, as opposed to
the single-party face of the presidency, assumes even greater significance when viewed in the
light of the super-majority threshold that a proposed constitution must clear in the legislature or
the national referendum in order to be approved. This high super-majority threshold means that,
unlike ordinary legislation which can be enacted with a simple one-party majority, a proposed
constitutional amendment cannot see the light of day unless it can garner strong bi-partisan
support among legislators or the national electorate. The way to assure and build the necessary
degree of bipartisan support and cooperation for a constitutional revision agenda is not to run it
as a single-party/presidential agenda until the process has advanced to a point when bi-partisan
co-optation may well be too late. At a minimum, the majority and minority parties in
Parliament must have an equal opportunity early in the process to put forth their own plans and
priorities for constitutional reform, rather than have the President and his party hijack the process
from the beginning and hope, in the end, to win over the opposition party. Securing the
22
necessary super-majority or bipartisan consensus for constitutional reform might prove
unnecessarily difficult to accomplish if the opposition party does not regard the reform project as
a joint enterprise from the start. The only way to ensure that is for the process of constitutional
review to originate in Parliament, not outside it.
Third, the Parliament of Ghana is already structured internally to handle matters related
to constitutional and legal reform. Among the committees of parliament is a Committee for
Legal and Constitutional Affairs. There are also committees on the judiciary and on various other
functional areas of government. Parliament can therefore easily and efficiently manage the
business of constitutional review by parceling out the various constitutional review proposals of
different political parties to appropriate functional-area or subject-matter committees. Thus, any
efficiency advantage that a presidentially-appointed commission might be expected to have over
Parliament, on account of the latter‘s unwieldy size, is easily overcome by using the legislature‘s
committee system to handle the business of constitutional review. The parliamentary committee
approach has other advantages. Under article 103(6) of the constitution, parliamentary
committees must be so constituted as to ―reflect the different shades of opinion in Parliament.‖74
This degree of bi-partisanship and inclusiveness is not guaranteed in a presidential commission,
which is composed solely of personal appointees of the President. Parliamentary rules also
enable the committees of Parliament to hold public hearings and to receive or solicit input and
submissions from experts and the general public as well as engage the services of consultants
just like an extra-parliamentary commission appointed by the President. Additionally,
committees of parliament have the same subpoena and other evidence-gathering powers and
74
Fourth Republican Constitution, Article 103.
23
privileges as would a presidential commission. In short, there is no unique advantage that a
presidentially-appointed constitution review commission brings to the process that Parliament,
acting through its committees, lacks.
On the other hand, Parliament has certain advantages, apart from its superior democratic
legitimacy and representativeness, which a presidential commission cannot match. Unlike
commissions that are appointed by the President on an ad hoc basis, Parliament is a permanent
constitutionally-established body. Placing Parliament in charge of constitutional review will thus
enable it to develop, over time, the appropriate institutional competence and memory, as well as
accumulate a body of knowledge and related resources, in the area of constitutional review.
This opportunity for institutional development and growth, which a historically enfeebled
Parliament, like Ghana‘s, desperately needs, is lost when Members of Parliament yield or
concede the initiative in constitutional review to an ad hoc, extra-parliamentary commission
established at the pleasure of the President. Ultimately, it is a waste of scarce national resources
for presidents to empanel ad hoc commissions for tasks that Parliament is competent and well
organized to accomplish. Outsourcing constitutional review to an ad hoc commission, bringing
Parliament in at the end only to approve a ―done deal,‖ reduces the legislative chamber to a
rubber-stamp, which ironically is one of the ailments that the current review is asked to cure.
Fourth, placing Parliament in the driver‘s seat in matters of constitutional review would
ensure that the decision whether to commence or undertake a review of the constitution is ―decentralized‖ rather than left to sole discretion or will of the President. A constitutional review
process that is triggered only if the President desires it leaves the possibility and timing of
constitutional change hostage to presidential inertia or disinterest. This is particularly likely to
24
be the case where changes may be desired in the constitution in order to constrain executive or
presidential power. In fact, particularly in new African democracies like Ghana, where a
tradition of presidential hegemony continues to cast a dark shadow on current efforts to
institutionalize constitutionalism, limiting executive power and discretion is often one of the
primary goals of advocates of progressive constitutional reform. In such situations, allowing the
presidency to ―capture‖ the process and agenda for constitutional change is the surest way to
frustrate and undermine progress toward constitutionalism. Where Parliament is the initiating
body, the process of constitutional reform could be triggered by more than one person or party,
as long as certain predetermined conditions (that could be set forth in the standing orders of
Parliament) have been met.
Lastly, the history of presidential abuse of the amendment power in Ghana, counsels
against leaving the President in charge of determining the timing of, and setting the agenda for,
constitutional reform. The immediate post-independence experience, especially under the First
Republic, is particularly instructive in this regard. Every single constitutional amendment that
was made under the Independence Constitution and, later, the Constitution of the First Republic
(1960, as amended in 1964) was made at the behest of Nkrumah, in his capacity, first, as Prime
Minister and, later, as President. Nearly all of these constitutional changes were in reaction to
developments and events, including judicial rulings, which Nkrumah perceived as challenging
his supremacy or threatening his hold on power.75 Importantly, the successive amendments had,
both individually and in the aggregate, the purpose or effect of consolidating more and more
75
See William Burnett Harvey, Law and Social Change in Ghana, Princeton University Press (1966). See also H.
Kwasi Prempeh, Toward Judicial Independence and Accountability in an Emerging Democracy: The Courts and the
Consolidation of Democracy in Ghana Institute of Economic Affairs, Accra (1997), pp. 31-33.
25
power in the hands of a single individual, enfeebling the legislature, judiciary and opposition
parties, and eventually installing a one-party state and a dictator with an indefinite tenure.
Although Ghana‘s current constitution has installed certain substantive and procedural firewalls
to prevent a recurrence of some of the experiences under the First Republic, to cede to the
president discretionary control over whether and when the constitution may be amended is to
trust a single individual with too much power over the pace and fate of constitutional change in
the country and thus reflects a failure to heed the lessons of history. Notably, the few
amendments that have so far been made to the 1992 Constitution were made at the initiative of
then President Rawlings. It is doubtful that any of these earlier amendments to the current
constitution was meant to strengthen the foundations of Ghanaian constitutionalism. In fact, a set
of these amendments was pushed through by President Rawlings to reconfigure the presidency
more firmly as a ―unitary executive‖ by shifting to the President certain formal roles which the
constitution had originally assigned to the Vice-President. This rebalancing of power between
the president and the vice-president came in the wake of a rift between President Rawlings and
his first Vice-President that grew worse, more public and more personal with time.
In other contemporary African democracies where presidents have claimed or exercised a
similar prerogative to determine the timing and agenda for constitutional reform, many have
taken advantage of that power to attempt to push through proposals to remove presidential termlimit provisions in their constitutions. Even when such attempts have failed, as happened in
Nigeria, Malawi and Zambia, they have precipitated needless political tension and crises and
threatened to undermine recent democratic gains. Merely to leave a president with a certain
power is to invite or tempt the exceptionally ambitious to, at least, attempt to use such power,
even if they might be ultimately unsuccessful in their ambition.
26
Locating the power to initiate and set the agenda for constitutional review in Parliament,
instead of the President, does not mean that the President would be denied the opportunity of a
meaningful participation in the process or that his role must be limited to the perfunctory one of
assenting to a fait accompli. There are multiple avenues for the President to make substantive
input into, or help shape the content of, a constitutional reform agenda that is before Parliament.
First, the President can transmit his administration‘s views and proposals directly to Parliament,
to be considered, along with others, at the start of the process. Second, as a majority of the
President‘s Ministers are, under the current constitution, also Members of Parliament, the
President already has dependable agents in Parliament who can readily adopt and sponsor the
administration‘s own preferred agenda, in competition with those of other parties, on the floor of
the House. Third, the President‘s views on constitutional reform can be adequately represented
in Parliament by his party, which is typically the majority or single largest party in Parliament.
Minority parliamentary parties would lack a similar ability to influence the setting of the
constitutional reform agenda, from the beginning, if the initiation of the process and the agendasetting were to be located in the presidency or in an extra-parliamentary ad hoc commission set
up by the president.
IV. WHY GHANA’S PRESIDENTS CONTINUE TO HAVE THEIR WAY
Although the Ghana Parliament has firm grounds, based in the text and structure of the
constitution as well as in sound policy, to assert primacy and control over an agenda for
constitutional reform, it has not done so. Instead, it has taken a back seat, implicitly conceding
to the President the power to initiate and set the agenda and timetable for constitutional review.
There are at least three possible reasons why Ghana‘s Parliament might be unsure of its power in
27
this field and, conversely, why the President is so certain that it stands on firm grounds in seizing
the initiative.
The first is the prevailing understanding of article 278(a)(1). This is the provision of the
Constitution pursuant to which the President purportedly established the constitution review
commission and charged it with the comprehensive review of the Constitution and the
development of a draft bill for amendments to the Constitution. That provision provides, ―the
President shall, by constitutional instrument, appoint a commission of inquiry into any matter of
public interest where the President is satisfied that a commission of inquiry should be
appointed.‖
On the face of it, the phrase, ―any matter of public interest,‖ seems elastic and openended, and thus might be read to impose no limitation of any kind on the subject-matter about
which a presidential commission might be appointed. But such literalism, particularly in the
interpretation of a constitutional text, is rejected under prevailing Ghanaian constitutional law.
The Supreme Court of Ghana has maintained that constitutional text must be read not literally
but purposively.76 This rejection of literalism is in fact common to judicial interpretation of
constitutional texts in common law legal cultures. For example, the First Amendment to the U.S.
Constitution states, ―Congress shall make no law . . . abridging the freedom of speech.‖ But as
the Supreme Court of the United States has long held, the ―no law‖ in the First Amendment
76
See e.g. Professor Stephen K. Asare v. Attorney General Writ no. 3/2002, issued 28 January 2004. (―What
interpretation is to be given the words should depend upon the court‘s perception of the purpose of the provision and
the context of the words, rather than on their dictionary meaning. The ―plain meaning‖ approach to judicial
interpretation is not necessarily the most apposite. In my view, words hardly ever have a meaning in vacuo. Words
take on a meaning in association with the other words in whose context they are used. Therefore, the interpretation
of words almost invariably means doing more than finding their mere dictionary (or ―literal‖ or ―plain‖) meaning‖).
28
cannot reasonably be read literally to mean that Congress cannot enact any legislation at all that
regulates free speech.77
Similarly, the phrase ―any matter of public interest‖ in article 278(1)(a) of the Ghana
Constitution cannot be read literally to empower the President to establish a commission at his
pleasure to undertake any and every conceivable assignment that the President deems to be in the
―public interest.‖ Because matters ―in the public interest‖ are virtually without limit and, at a
minimum, extend to any matter that lies within the functions and jurisdiction of a public
institution, a literal reading of article 278(1)(a) would grant the President license to appoint
commissions to take on the full range of functions constitutionally assigned to other bodies
outside the executive branch, and thus undermine the independence and credibility of such
institutions and make nonsense of the constitutional scheme of separation of powers.
A careful reading, not merely of article 278(1)(a), but of the entire chapter 23 (devoted to
―Commissions of Inquiry‖), reveals that what is contemplated there is not an all-purpose
commissioning power but the power to commission what is, in effect, an independent inquiry to
investigate and establish the truth relating to a specific occurrence, affair or the activities of an
entity. Such an inquiry would be considered judicial or quasi-judicial in nature. Thus, article
280(2) of the Constitution states that, adverse findings made against a person (which presumably
covers legal persons), by an article 278 commission, is deemed to have the same juridical status
as a judgment of the High Court, an appeal from which lies with the Court of Appeal.78
77
See e.g., Schenck v. United States, 249 U.S. 47 (1919) ( holding that the ―question in each case is whether the
words used are used in such circumstances and are of such nature as to create a clear and present danger that they
will bring substantive evils that congress has a right to prevent‖).
78
4th Republican Constitution, Article 280(2).
29
Furthermore, the rules of procedure applicable to article 278 commissions are determined by the
Rules of Court Committee,79 a constitutional body chaired by the chief justice with a
membership drawn from the judiciary and the bar.80
In short, the commission established by the President of Ghana to undertake a
comprehensive review of the constitution and draft a bill of proposed amendments to the
Constitution is of a radically different kind than the commissions contemplated under article
278(1)(a). In fact, the history of commissions of inquiry in Ghana bears out this narrower
understanding of the kind of commission article 278 contemplates. Commissions of inquiry
established in Ghana have, almost without exception, been limited to the independent judicial/
quasi-judicial inquiry kind. A presidential commission of inquiry has never before been used to
undertake exclusively a comprehensive review of a subsisting constitution of Ghana or, for that
matter, to draft a bill for proposed amendment of the constitution, and in our view the framers of
the 1992 Constitution of Ghana did not propose to break new ground in this area. Rather, the
special constitutional scheme set up for amending the Constitution clearly suggests an intention
to adopt a process of constitutional change that has an extraordinary degree of democratic
participation and legitimacy. We believe that only a process formulated and led by Parliament,
not one imposed on it by the President, meets this high bar. The prevailing understanding of
article 278(1)(a), pursuant to which the will of the President determines whether, when and how
the Constitution would be reviewed or revised, subverts the constitutional plan.
79
Ibid., Article 281(2).
80
Ibid., Article 157.
30
It is instructive that in jurisdictions that employ a constitutional commission as the
vehicle for constitutional reform, the constitution typically provides exhaustive guidance on how
the membership of the commission is to be constituted, the timing of review, and how the
commission will conduct its business. The constitution of the State of Florida, in the United
States, is a classic example. Article XI(2) of the Florida Constitution provides:
―a) Within thirty days before the convening of the 2017 regular session of the legislature, and each
twentieth year thereafter, there shall be established a constitution revision commission composed
of the following thirty-seven members: (1) the attorney general of the state; (2) fifteen members
selected by the governor; (3) nine members selected by the speaker of the house of representatives
and nine members selected by the president of the senate; and (4) three members selected by the
chief justice of the supreme court of Florida with the advice of the justices. (b) The governor shall
designate one member of the commission as its chair. Vacancies in the membership of the
commission shall be filled in the same manner as the original appointments. (c) Each constitution
revision commission shall convene at the call of its chair, adopt its rules of procedure, examine the
constitution of the state, hold public hearings, and, not later than one hundred eighty days prior to
the next general election, file with the custodian of state records its proposal, if any, of a revision
of this constitution or any part of it.‖
The virtue of this mode of constitutional review is that it sets forth in the constitution
clear rules defining the membership, scope, powers, and operating procedures for
constitutional commissions, as well as how members of the commission are to be selected
and the timing of constitutional review. Notably the Florida approach involves all three
branches of government in the selection of the members of the constitutional
commission. Altogether, the Florida approach ensures that the process and decision as to
when and by whom the constitution shall be reviewed are not left to the pleasure of any
31
one officeholder or organ of state.
If Ghana wishes to adopt the constitutional
commission approach in future to review and revise its constitution, the Florida approach
has much to commend in its favor. In the absence of that, Parliament must remain in
charge of the agenda for constitutional reform, as it alone, among the branches of
government, has the requisite degree of representativeness and diversity of political
interests to lend ex ante legitimacy and consensus to the reform agenda.
A second reason why Parliament and the Ghanaian political class would appear to
countenance the President‘s use of his commissioning powers to seize the initiative and set the
agenda for constitutional review stems from a misreading of yet another provision of the
Constitution; in this case, article 108. Article 108 provides:
―Parliament shall not, unless the bill is introduced or the motion is introduced by, or on behalf of,
the President (a) proceed upon a bill including an amendment to a bill, that, in the opinion of the
person presiding, makes provision for any of the following (i) the imposition of taxation or the
alteration of taxation otherwise than by reduction; or (ii) the imposition of a charge on the
Consolidated Fund or other public funds of Ghana or the alteration of any such charge otherwise
than by reduction; or (iii) the payment, issue or withdrawal from the Consolidated Fund or other
public funds of Ghana of any moneys not charged on the Consolidated Fund or any increase in the
amount of that payment, issue or withdrawal; or (iv) the composition or remission of any debt due
to the Government of Ghana; or (b) proceed upon a motion, including an amendment to a motion,
the effect of which, in the opinion of the person presiding, would be to make provision for any of
the purpose specified in paragraph (a) of this article.‖
Successive speakers and legislators in the Parliament of the Fourth Republic have
apparently read Article 108 to vest the President with practically exclusive power to initiate all
32
bills for the consideration of Parliament.81 This extraordinary reading of article 108 is said to
follow from the fact that almost every piece of proposed legislation will, in its implementation,
impose some ―charge,‖ however de minimis, on ―the Consolidated Fund or other public funds of
Ghana.‖82 Parliament‘s apparent acceptance of this clearly erroneous interpretation of article
108has caused it to defer entirely to the initiative of the President in all legislative matters,
leaving Ghana‘s Parliament with practically no proactive role in the formulation of laws.83 The
Ghana Parliament has thus turned itself into a mere ―approval‖ chamber for bills proposed and
introduced by or on behalf of the President.
At any rate, the subservience of Parliament to the President, occasioned by the mangled
reading of Article 108, applies, if it must, only to the making of ordinary legislation. It cannot
extend to the extraordinary act of amending a constitution. While a constitutional amendment
may be regarded as a species of legislation in the broadest sense of the term, and under Ghana‘s
Constitution is ultimately passed in the form of an Act of Parliament, it is indisputably different
in character and substance from ordinary legislation. Thus, whatever meaning one might give to
81
See Rt. Hon. Peter Ala-Adjetey, ‗Reflections on the Effectiveness of the Parliament of the Fourth Republic of
Ghana‘, Center for Democracy and Development, Accra (2006), p. 18 (―Largely because of these enervating
provisions in our Constitution, hardly any Member of Parliament is able to exercise any initiative in the passing of
laws affecting development of any kind whatsoever in the body politic. Practically all initiatives in Parliament are
thus left in the hands of the executive, which, by this state of affairs, can effectively control the way Parliament
operates, since Parliament is even impotent to take measures to improve its own facilities unless it can persuade the
President to initiate such measures on its behalf‖). Mr. Ala-Adjetey was the Speaker of Ghana‘s Parliament from
2001 to 2004.
82
Ibid. at 27 (―For all practical purposes , it is difficult to think of cases in which measures are initiated by
individual members of Parliament which will have the effect of reducing charges on the Consolidated Fund or
reducing payments made out of or withdrawals from the Fund‖).
83
See H. Kwasi Prempeh, ‗The Executive-Legislature Relationship under the 1992 Constitution: A Critical Review,
Center for Democracy and Development, Accra ( 2003), pp. 12-15 (criticizing the conventional understanding of
Article 108 and arguing that its proper meaning is to give the President, at most, only the exclusive power to
introduce a Finance Bill, or the Budget).
33
Article 108, that general provision cannot apply to or control the process for amending the
Constitution. Rather, because constitutional amendments are a special case, they are governed
by the specific process outlined in chapter 25 of the Constitution. Perhaps no rule of
constitutional or statutory construction is more firmly established than that general enactments
do not override or displace the specific.84
The last plausible explanation why Ghana‘s president has been allowed to capture the
current constitutional reform project is simply the force of habit or tradition. Legislative inertia
and deference to the executive is an entrenched feature of Ghana‘s constitutional politics dating
back to the early years of the Republic. Executive power grabs in Ghana are thus a fairly routine
affair, so routine, in fact, that most of them go unnoticed and unchallenged.
This state of affairs has been made worse by the perennial under-resourcing of
Parliament, itself a result, partly, of the fact that under existing practice, Parliament must depend
on the presidency for its budget.85 If Ghana‘s imperial presidency has survived into the current
democratic era, it is not because of any authoritarian predilections on the part of Ghana‘s
contemporary presidents. In fact, both President Mills and, before him, President Kufuor have
demonstrated no personal appetite for a ―muscular‖ presidency. Once thrust into office,
84
See e.g., In the Matter of A Parliamentary Election for the Wulensi Constituency Held on 7 th December, 2000.
Suit No. CM 73/2003 issued on 15th January, 2003. In this case, the Ghana Supreme Court held that its general
supervisory appellate power under Article 129(1) was supplanted by the specific appellate procedure set up for
elections in Article 99(2). Notably, Article 99 merely says that the High Court has jurisdiction to hear and
determine questions as to whether a person has been validly elected as a Member of Parliament (or whether the seat
of a Member of Parliament has become vacant), and a person aggrieved by the determination of the High Court may
appeal to the Court of Appeal. The Court ousted its supervisory jurisdiction, notwithstanding that Article 99 did not
stipulate the Court of Appeal‘s decision is final.
85
Ala-Adjetey, supra note 68.
34
however, the Ghanaian president soon realizes that he is very much ―monarch of all that he
surveys,‖ and he is so, invariably, with the full endorsement and complicity of Parliament.
V. CONCLUSION
The imperial presidency has been one of the most perdurable features of Ghanaian
political life, dating back to the early years of the republic.86 The tentacles of the Ghanaian
president, like those of his peers across Africa, extend far and wide, enfeebling all other
institutions of state in the process. Virtually every initiative in contemporary Ghana, as in the
past, has come from the President. This is the case even when those initiatives and decisions are
expressly and exclusively preserved in the Constitution for Parliament. Ghana‘s Fourth
Republican presidents have imposed on Parliament their choice of Speaker and gone even further
to name, who among, the Members of Parliament in the president‘s party would be the Majority
Leader.
Currently, Ghana is embarked on a comprehensive review of its Fourth Republican
constitution. This process, too, has been initiated unilaterally by the President through his
appointment of an extra-parliamentary constitution review commission. Not only has the
President singlehandedly appointed all nine members of the review commission and its executive
secretary, he has defined the scope of their work and identified about 40 specific provisions and
issues which the commission must consider, including the idea of extending (prospectively)
presidential tenure from four to five years. Never before has a sitting President (or prime
86
Supra note 15
35
minister) of Ghana handpicked a few individuals and tasked them to review and draft proposals
for amendments to an existing democratic constitution.
We have argued in this article that this latest extension of the Ghanaian President‘s
prerogatives is both ill-advised and of dubious constitutionality. In our view, Parliament, not the
President, is the legitimate and proper constitutional body to initiate and determine the timing
and content of constitutional review in Ghana. As the ―the road to hell is often paved with good
intentions,‖ we caution that, particularly when it comes to altering the fundamental law of the
land, agreement on matters of substance must not be allowed to cloud or subvert fidelity to sound
process. Taming the imperial presidency in Ghana, as in the rest of Africa, must begin with
wrestling away from presidents the power to determine whether, when and how constitutional
change shall proceed.
36
Appendix 1. List of proposed changes to the Constitution
1. A review of the provisions of Chapter Eight of the Constitution to determine whether
there should be a curtailment of the excessive powers of the Executive President.
2. A review of the Constitution to determine whether it should be amended to allow more
easily for the tabling and passage of Private Member Bills in Parliament.
3. Flowing from the above, a review of article 108 barring anyone other than the President
or someone designated by him to propose a bill that has financial implications.
4. The decoupling of the position of Attorney-General from that of Minister for Justice
(article 88).
5. A review of the constitutional injunction in article 78(1) that a majority of Ministers of
State should come from Parliament.
6. A review of article 78(2) which does not place a ceiling on the number of ministers a
President may appoint.
7. Absence of a ceiling on the number of judges that may be appointed to the Supreme
Court and the Appeal Court under Article 128(1) and 136(1)(b) of the Constitution.
8. A reconsideration of applying the tenure of judges to the heads of the independent
constitutional bodies; Commission on Human Rights and Administrative Justice
(CHRAJ), National Commission on Civic Education (NCCE), Electoral Commission
(EC) and the National Media Commission (NMC).
9. The overlapping functions of independent constitutional bodies such as the Commission
on Human Rights and Administrative Justice (CHRAJ); the National Commission on
Civic Education (NCCE); the Electoral Commission (EC); and also between some
constitutional bodies and statutory bodies such as the anti-corruption mandate of the
CHRAJ and the Serious Fraud Office (SFO).
10. The panel system at the Supreme Court, especially the power of the Chief Justice to
empanel the Court for all cases, even for cases involving the Chief Justice as Plaintiff or
Defendant;
11. Proposals for empanelling all members of the Supreme Court to sit on all or key cases in
order to ensure finality to litigation and consistency of precedence.
12. A proposal for amending the Constitution to allow the CHRAJ to investigate all forms of
malfeasance of a public officer without a complaint made to it.
13. A clarification of the public character or otherwise of the chieftaincy institution and
whether or not a chief may hold public office (Articles 94 (3) (c) and 276 (2)).
14. A change of the timing for the holding of Presidential and Parliamentary elections
(articles 63(2) and 112(4).
15. A consideration of the prohibition on serving a court process on a the Speaker of
Parliament, a Member of Parliament or the Clerk of Parliament, even when (s)he has left
the precincts of Parliament contained in article 117.
37
16. A proposal for increasing the tenure of office of a President from four to five years under
article 66(1).
17. The inclusion of provisions to regulate a scenario where a sitting President leaves the
party on whose ticket he was voted into power.
18. The inclusion of provisions to regulate a scenario where a Vice President resigns from
office.
19. The provision of more effective provisions in the Constitution in order to effectuate real
decentralization of governmental powers and functions to the District Assemblies
(Chapter 20).
20. The reconsideration of the attempt to impose a partisan government on a non-partisan
local government system (article 248(1)).
21. A review of the Constitution to allow for the election of District Chief Executives (article
243).
22. A review of the death penalty provisions and the possible abolition of the death sentence
(articles 3(3) & 19 (2)).
23. A reconsideration of the exclusion of Executive Instruments from the category of
subsidiary legislation which requirement prior parliamentary approval for their validity,
(article 11(7)).
24. A review of the composition of the Electoral Commission in terms of Article 43 to
determine whether part-time membership be removed and be replaced by full-time
members.
25. A reconsideration of Article 45 with a view to granting the Electoral Commission the
power to monitor and enforce compliance with electoral laws by political parties.
26. A review of Article 55(17) to provide for Parliamentary debate of the Annual Reports of
the Electoral Commission.
27. A review of Article 71(1) to remove the power granted the President to determine the
salaries, allowances and facilities of Members of Parliament and the Speaker.
28. A reconsideration of Article 75(1) in terms of rewording for better clarity.
29. A review of Article 82(5) to establish whether it should be amended to make it
mandatory, rather than discretionary, for the President to revoke the appointment of a
Minister once Parliament has passed a vote of no confidence in that Minister.
30. A review of Articles 142-147 to determine whether the Regional Tribunals be removed
from the court structure of Ghana.
31. A reconsideration of the Article 146(6) to determine whether it should be amended to
include Parliamentary oversight and public proceedings in the process for removing the
Chief Justice from office.
32. A review of article 190(1) on the listing of the Public Services of Ghana in order to more
fully take account of changes in the Public Services.
33. A review of the provisions on retiring age and pension to allow lawyers in senior grades
of the Legal Service to retire at sixty-five, (Article 199(1)).
38
34. A review of the Article 221 to determine whether it should be amended to allow for the
appointment of non-lawyers to the membership and chairmanship of the CHRAJ.
35. A reconsideration of Article 218(a) – (e) to determine whether it should be amended to
remove the traditional ombudsman or administrative justice functions from the CHRAJ
and to assign them to a new institution (such as the Labour Commission) so that the
CHRAJ can focus on human rights and anti-corruption.
36. A review of Article 225 to determine whether it should be amended to identify or create a
source of funding similar to that of the Common Fund to finance the CHRAJ and its
commissioners.
37. A review of the provisions of Chapter 18 of the Constitution to provide for Parliamentary
debate of the CHRAJ annual reports and to ensure accountability and social auditing of
the performance of the CHRAJ.
38. A review of the provisions on amendments of entrenched provision in order to make the
process more meaningful to the citizenry (article 290(5)).
39. A review of the provisions on the amendments of non-entrenched provisions to clarify
matters relating to the reference to the Council of State of proposed amendments after the
first reading of a Bill for the purpose (Article 291(2)).
Source: The Ministry of Justice, Ghana, Consultative Review of 16 Years of the Operation of the 1992
Constitution of Ghana: Project Proposal (October 2009).
39